Without an equality sign

25.04.2018

The High Qualification and Disciplinary Bar Commission of Ukraine (HQDBC) notes that criminal proceedings are not an obstacle to the disciplinary proceedings.

Suspending verification of the materials on the complaint against the attorney-at-law should be justified. The mere reference to the existence of the criminal proceeding is not a justification for this.

The attorney-at-law, who participated in the criminal proceeding as a witness, got excited during the trial. This seemed to be misconduct to the owner of the gown, who found himself in the dock as a suspect. To rein in the passionate lawyer, the suspect judge complained to the regional QDBC.

The regional QDBC began the verification after the application of the votary of Themis was examined and the explanations about this were given by the attorney-at-law. But then the Commission concluded that this verification was impossible to continue as long as the criminal proceeding was ongoing. This was noted by QDBC in the response to the complaint, where the Commission obliged the applicant to immediately inform the disciplinary chamber of the decision of the court, which was adopted following the consideration of the proceeding. Thereafter, the “disciplinary officers” promised that the verification will be resumed.

Unsatisfied with this decision of the regional QDBC, the judge appealed to the High Qualification and Disciplinary Bar Commission to annul the verdict.

After examining the complaint, the HQDBC noted that according to the requirements of Article 38 of the Law “On Bar and Advocacy” of 05.07.2012 No. 5076-VI, a member of the disciplinary chamber of the CDBC shall compile a certificate, conclusions and proposals regarding the existence of grounds for initiating a disciplinary case. All these documents together with the complaint should be forwarded to the Chamber for consideration.

According to the minutes of the meeting of the disciplinary chamber of the QDBC, when considering the complaint, such a certificate was missed in the materials, and the member of the chamber reported verbally on the grounds that made it impossible to conduct the audit. Moreover, the “disciplinary officers” allowed a divergence, when the protocol decision indicated suspending of consideration of the application, and the notice of complaint stated suspending of the verification.

The above mentioned information gave HQDBC grounds to believe that the disciplinary chamber of the CDBC, after receiving the complaint about the behavior of the lawyer, did not properly consider it in accordance with the requirements of paragraph 15 of the Regulation on the procedure for accepting and reviewing complaints about the improper behavior of a lawyer, which can lead to his disciplinary responsibility, approved in the Bar Council of Ukraine decision № 120 of 30.08.2014.

As for the very possibility of stopping the verification, the HDBC noticed the following: Law No. 5076-VI restricts disciplinary proceeding to such stages as data verification on a disciplinary offense of a lawyer, initiation of a disciplinary proceeding, consideration of a disciplinary case, and decision on a disciplinary matter. At the same time, the possibility of stopping the consideration of the complaint is stipulated in paragraph 7.7 of the regulations of the regional QDBC. However, this stopping requires proper justification. And a reference to the existence of a criminal proceeding cannot justify this.

Having taken into account the above, the HQDBC concluded that it is necessary to cancel the decision of the disciplinary chamber of the regional QDBC and return the materials to the stage of data verification on the disciplinary offense of the lawyer.